State of Florida v. Budry Michel

Supreme Court of Florida
____________

No. SC16-2187
____________

STATE OF FLORIDA,
Petitioner,

vs.

BUDRY MICHEL,
Respondent.

[July 12, 2018]
CORRECTED OPINION

POLSTON, J.

We review the decision of the Fourth District Court of Appeal in Michel v.

State, 204 So. 3d 101 (Fla. 4th DCA 2016), in which the Fourth District certified

that its decision conflicts with the decisions of the Fifth District Court of Appeal in

Stallings v. State, 198 So. 3d 1081 (Fla. 5th DCA 2016), and Williams v. State, 198

So. 3d 1084 (Fla. 5th DCA 2016).1 We quash the Fourth District’s decision in

Michel and approve the Fifth District’s decisions in Stallings and Williams to the

extent that they are consistent with this opinion.

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
 As explained below, we hold that juvenile offenders’ sentences of life with

the possibility of parole after 25 years do not violate the Eighth Amendment of the

United States Constitution as delineated by the United States Supreme Court in

Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012),

and Virginia v. LeBlanc, 137 S. Ct. 1726 (2017). Therefore, such juvenile

offenders are not entitled to resentencing under section 921.1402, Florida Statutes.

BACKGROUND

Budry Michel was charged with first-degree murder, armed robbery, armed

kidnapping, and attempted armed robbery in the shooting death of Lynette Grames

and robbery of Adnan Shafi Dada. The crimes occurred in 1991 when Michel was

sixteen years old. After a jury convicted him of first-degree premeditated murder

and armed robbery, he was sentenced to life imprisonment with the possibility of

parole after 25 years with a concurrent sentence for the armed robbery that has

since expired. The Fourth District affirmed Michel’s judgment and sentence on

direct appeal. See Michel v. State, 727 So. 2d 941 (Fla. 4th DCA 1998).

After the United States Supreme Court issued its opinion in Miller, Michel

filed a motion for postconviction relief pursuant to Florida Rule of Criminal

Procedure 3.850. The motion asserted that he was sentenced to life in prison for a

homicide and, because he was under eighteen at the time of the crime, he was

entitled to relief under Miller. The State argued that Miller was inapplicable

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because Michel had the opportunity for release on parole. The trial court

summarily denied the motion for the reasons stated in the State’s response. On

appeal, the Fourth District reversed, interpreting this Court’s opinion in Atwell v.

State, 197 So. 3d 1040 (Fla. 2016), to require resentencing even where the offender

may later obtain parole. See Michel, 204 So. 3d at 101.

ANALYSIS

The United States Supreme Court’s Eighth Amendment precedent regarding

juvenile sentencing requires a mechanism for providing juveniles with an

opportunity for release based upon their individual circumstances, which is not a

standard aimed at guaranteeing an outcome of release for all juveniles regardless of

individual circumstances that might weigh against release.

Specifically, in Graham, 560 U.S. at 74, the United States Supreme Court

held that “for a juvenile offender who did not commit homicide the Eighth

Amendment forbids the sentence of life without parole.” Importantly, the United

States Supreme Court continued by explaining the following:

A State is not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime. What the State
must do, however, is give defendants like Graham some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation. It is for the State, in the first instance, to explore the
means and mechanisms for compliance. It bears emphasis, however,
that while the Eighth Amendment prohibits a State from imposing a
life without parole sentence on a juvenile nonhomicide offender, it
does not require the State to release that offender during his natural
life. Those who commit truly horrifying crimes as juveniles may turn

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 out to be irredeemable, and thus deserving of incarceration for the
duration of their lives. The Eighth Amendment does not foreclose the
possibility that persons convicted of nonhomicide crimes committed
before adulthood will remain behind bars for life. It does prohibit
States from making the judgment at the outset that those offenders
never will be fit to reenter society.

Id. at 75.

Then, in Miller, 567 U.S. 460, the United States Supreme Court extended its

categorical rule prohibiting life sentences without parole for juvenile offenders

convicted of nonhomicide crimes to juvenile offenders convicted of homicide. The

Court held that “the Eighth Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile offenders.” Id. at 479. It

explained that “[m]andatory life without parole for a juvenile precludes

consideration of his chronological age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and consequences.” Id. at

477. “[Y]outh matters in determining the appropriateness of a lifetime of

incarceration without the possibility of parole.” Id. at 473. And “[a]lthough [the

United States Supreme Court did] not foreclose a sentencer’s ability to make that

judgment in homicide cases, [the Court did] require it to take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480.

In Atwell, when attempting to apply the United States Supreme Court’s

decisions in Graham and Miller, a majority of this Court took issue with extended

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presumptive parole release dates that may occur under Florida’s parole statute and

held that “[p]arole is, simply put, ‘patently inconsistent with the legislative intent’

as to how to comply with Graham and Miller.” Atwell, 197 So. 3d at 1049

(quoting Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015)).

However, the more recent decision of LeBlanc, 137 S. Ct. 1726, has clarified

that the majority’s holding does not properly apply United States Supreme Court

precedent. We reject the dissent’s assertion that we must adhere to our prior error

in Atwell and willfully ignore the United States Supreme Court’s clarification in

LeBlanc. See Rotemi Realty, Inc. v. Act Realty Co., 911 So. 2d 1181, 1188 (Fla.

2005) (“[S]tare decisis counsels us to follow our precedents unless there has been

‘a significant change in circumstances after the adoption of the legal rule, or . . . an

error in legal analysis.’ ” (emphasis added) (quoting Dorsey v. State, 868 So. 2d

1192, 1199 (Fla. 2003))).

In LeBlanc, 137 S. Ct. at 1729, the United States Supreme Court reversed

the Fourth Circuit Court of Appeals and held that a Virginia court’s decision

affirming a juvenile offender’s sentence of life for a nonhomicide crime subject to

the possibility of conditional geriatric release was not an unreasonable application

of the Supreme Court’s case law. The Virginia court had relied on Angel v.

Commonwealth, 704 S.E. 2d 386 (Va. 2011), where the Virginia Supreme Court

held that Virginia’s geriatric release program complied with Graham “because it

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provided ‘the meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation required by the Eighth Amendment.’ ” LeBlanc, 137 S.

Ct. at 1728 (quoting Angel, 704 S.E. 2d at 402). “The [Virginia] statute

establishing the program provides:”

Any person serving a sentence imposed upon a conviction for a felony
offense . . . (i) who has reached the age of sixty-five or older and who
has served at least five years of the sentence imposed or (ii) who has
reached the age of sixty or older and who has served at least ten years
of the sentence imposed may petition the Parole Board for conditional
release.

Id. (quoting Va. Code Ann. § 53.1-40.01 (2013)). Further, “[t]he regulations for

conditional release under this statute provide that if the prisoner meets the

qualifications for consideration contained in the statute, the factors used in the

normal parole consideration process apply to conditional release decisions under

this statute.” Id. (quoting Angel, 704 S.E. 2d at 402).

As the United States Supreme Court explained in LeBlanc,

Graham did not decide that a geriatric release program like Virginia’s
failed to satisfy the Eighth Amendment because that question was not
presented. And it was not objectively unreasonable for the state court
to conclude that, because the geriatric release program employed
normal parole factors, it satisfied Graham’s requirement that juveniles
convicted of a nonhomicide crime have a meaningful opportunity to
receive parole. The geriatric release program instructs Virginia’s
Parole Board to consider factors like the “individual’s history . . . and
the individual’s conduct ... during incarceration,” as well as the
prisoner’s “inter-personal relationships with staff and inmates” and
“[c]hanges in attitude toward self and others.” See 841 F.3d at 280–
281 (Niemeyer, J., dissenting) (citing Virginia Parole Board Policy
Manual 2–4 (Oct. 2006)). Consideration of these factors could allow

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 the Parole Board to order a former juvenile offender’s conditional
release in light of his or her “demonstrated maturity and
rehabilitation.” Graham, 560 U.S., at 75.
Id. at 1728-29.

Similarly, here, Michel’s sentence does not violate Graham or Miller

because Michel was not sentenced to life without the possibility of parole. Michel

is eligible for parole after serving 25 years of his sentence, which is certainly

within his lifetime. The United States Supreme Court’s precedent states that the

“Eighth Amendment . . . does not require the State to release [a juvenile] offender

during his natural life.” Graham, 560 U.S. at 75. It only requires states to provide

“some meaningful opportunity to obtain release based on demonstrated maturity

and rehabilitation.” Id. And Michel will receive a “meaningful opportunity” under

Florida’s parole system after serving 25 years in prison and then (if applicable)

every 7 years thereafter. See §§ 947.16-.174, Fla. Stat.

Florida’s statutorily required initial interview and subsequent reviews before

the Florida Parole Commission include the type of individualized consideration

discussed by the United States Supreme Court in Miller. For example, under

section 947.174(3), Florida Statutes, the presumptive parole release date is

reviewed every 7 years in light of information “including, but not limited to,

current progress reports, psychological reports, and disciplinary reports.” This

information, including these individualized reports, would demonstrate maturity

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and rehabilitation as required by Miller and Graham. Moreover, there is no

evidence in this record that Florida’s preexisting statutory parole system (i) fails to

provide Michel with a “meaningful opportunity to obtain release,” Graham, 560

U.S. at 75, or (ii) otherwise violates Miller and Graham when applied to juvenile

offenders whose sentences include the possibility of parole after 25 years. And

these parole decisions are subject to judicial review. See Johnson v. Fla. Parole

Comm’n, 841 So. 2d 615, 617 (Fla. 1st DCA 2003) (recognizing that the Parole

Commission’s final orders are reviewable in circuit court through an extraordinary

writ petition); see also Parole Comm’n v. Huckelbury, 903 So. 2d 977, 978 (Fla.

1st DCA 2005) (reviewing a circuit court’s order on an inmate’s petition

challenging the suspension of a presumptive parole release date).

Accordingly, if a Virginia juvenile life sentence subject to possible

conditional geriatric release after four decades of incarceration based upon the

individualized considerations quoted above conforms to current case law from the

United States Supreme Court, a Florida juvenile life sentence with the possibility

of parole after 25 years does too. See also Friedlander v. United States, 542 Fed.

Appx. 576, 577 (9th Cir. 2013) (holding Miller did not apply to juvenile offender’s

life sentence because “Friedlander was not sentenced to life without parole [as]

Friedlander admits that he ‘has seen the parole board approximately 8 time[s]’ ”);

Lewis v. State, 428 S.W.3d 860, 863 (Tex. Crim. App. 2014) (holding that a

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juvenile’s mandatory sentence of life with possibility of parole did not violate

Miller, explaining that “[l]ife in prison with the possibility of parole leaves a route

for juvenile offenders to prove that they have changed while also assessing a

punishment that the Legislature has deemed appropriate”); James v. United States,

59 A.3d 1233, 1235 (D.C. 2013) (holding that Graham and Miller did not apply to

a Washington, D.C., juvenile offender’s sentence of a mandatory minimum of 30

years to life with eligibility for parole after 30 years).2

CONCLUSION

We hold that juvenile offenders’ sentences of life with the possibility of

parole after 25 years under Florida’s parole system do not violate “Graham’s

requirement that juveniles . . . have a meaningful opportunity to receive parole.”

LeBlanc, 137 S. Ct. at 1729. Therefore, such juvenile offenders are not entitled to

resentencing under section 921.1402, Florida Statutes. Accordingly, we quash the

2. The Iowa Supreme Court invalidated a juvenile offender’s 50-year
sentence with eligibility for parole after 35 years, but it “independently appl[ied]
article I, section 17 of the Iowa Constitution” to do so. State v. Pearson, 836
N.W.2d 88, 96 (Iowa 2013). This Court cannot find an independent basis in our
Florida Constitution. See art. I, § 17, Fla. Const. (“The prohibition against cruel or
unusual punishment, and the prohibition against cruel and unusual punishment,
shall be construed in conformity with decisions of the United States Supreme
Court which interpret the prohibition against cruel and unusual punishment
provided in the Eighth Amendment to the United States Constitution.”).

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Fourth District’s decision in Michel and approve the Fifth District’s decisions in

Stallings and Williams to the extent that they are consistent with this opinion.

It is so ordered.

CANADY, C.J., and LAWSON, J., concur.
LEWIS, J., concurs in result.
PARIENTE, J., dissents with an opinion, in which QUINCE and LABARGA, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

PARIENTE, J., dissenting.

I dissent from the plurality’s decision holding that Budry Michel is not

entitled to relief from his life sentence. Plurality op. at 2. Michel, who was sixteen

years old at the time of his crimes, was sentenced to a mandatory life sentence with

the possibility of parole after twenty-five years. See plurality op. at 2. Based on

this Court’s precedent in Atwell v. State, 197 So. 3d 1040 (Fla. 2016), Michel is

entitled to resentencing. Instead, the plurality denies Michel relief, disregarding

our precedent in Atwell, while offering no convincing reason for refusing to apply

that case, which was decided a mere two years ago.

Because Atwell was granted resentencing by this Court, he is now entitled

to a new sentencing hearing where his youth and other factors are required to be

considered when determining the appropriate sentence. See § 921.1401, Fla. Stat.

(2017). Additionally, at the hearing, the sentencing court would have the

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discretion to impose a term of years sentence as low as forty years’ imprisonment.

See § 775.082(1)(b)1., Fla. Stat. (2017). Moreover, and importantly, Atwell would

be entitled to review of his sentence after twenty-five years’ imprisonment. See

§ 921.1402(2)(a), Fla. Stat. (2017). Atwell’s sentence review hearing would be

presided over by a trial judge, and would include his presence with an attorney,

and the ability to present pertinent information to prove his entitlement to release

based on maturity and rehabilitation. Id. § 921.1402 (5)-(6).

Michel, by contrast, will remain sentenced to life in prison, being entitled to

review of his sentence after twenty-five years, at a hearing presided over by the

parole commission. He will not have the right to be present, nor will he have the

right to be represented by an attorney. The commission will also not be required to

consider the Miller3 factors, nor will Michel have any real opportunity to present

evidence in his defense. 4

3. Miller v. Alabama, 567 U.S. 460 (2012).
4. The question becomes whether there would ever come a point when
Michel could claim that his sentence violates the Eighth Amendment. Michel is
currently forty-three years of age. He has spent approximately twenty-five years—
over half of his life—incarcerated. Under the reasoning of the plurality opinion,
would Michel be entitled to file a postconviction motion challenging his sentence
as unconstitutional if he is still incarcerated when he reaches the age of fifty, or
sixty, or seventy, challenging the way the parole commission has reviewed his case
without considering the factors deemed critical for Eighth Amendment purposes?

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 Consequently, Michel is left with the distinct possibility that he will spend

the rest of his life in prison under a parole system that, as we painstakingly

explained in Atwell, does not take into consideration any of the constitutionally

required Miller factors when determining whether a juvenile offender should be

released from prison. Because I strongly disagree with the plurality’s decision to

disregard this Court’s well-reasoned opinion in Atwell, I dissent.5

Atwell—the Controlling Law

The plurality’s decision throws this State’s juvenile sentencing case law

post-Graham6 and Miller into a state of chaos by refusing to apply this Court’s

opinion in Atwell, which appellate courts and the State have appropriately observed

is the controlling law. While I recognize that this Court is required to construe the

Florida Constitution’s protection against cruel and unusual punishment in

conformity with the United States Constitution, if the United States Supreme Court

has not directly addressed the precise issue, this Court is not required to wait until

it does so. See art. I, § 17, Fla. Const.; see also Howell v. State, 133 So. 3d 511,

516 (Fla. 2014) (observing that this Court has, “prior to any directly applicable

5. I would strongly urge the Legislature to look at the implications of the
plurality’s decision to determine whether amendments are warranted to chapter
2014-220, sections 2-3, Laws of Florida. See §§ 921.1401, 921.1402, Fla. Stat.
(2018).

6. Graham v. Florida, 560 U.S. 48 (2010).

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precedent from the United States Supreme Court as to the standard for an Eighth

Amendment claim based on a challenge . . . addressed [the issue.]”) (citing Sims v.

State, 754 So. 2d 657 (Fla. 2000)).

In Atwell, this Court faithfully adhered to the United States Supreme Court’s

opinions in Graham and Miller, explaining why, in Florida, a life with parole

sentence is the equivalent of a life without parole sentence. Atwell, 197 So. 3d at

1048. It is telling that the State did not seek certiorari review of the Atwell

decision in an attempt to argue that this Court misconstrued the United States

Supreme Court’s Eighth Amendment jurisprudence.

Traditionally, while the United States Supreme Court has made categorical

rules regarding the Eighth Amendment, it has left to the States the “task of

developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.” Atkins v. Virginia, 536 U.S. 304, 317 (2002) (alteration in

original) (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (2002)). In response

to that task, the Atwell Court concluded that Florida’s parole commission hearings

fail to comport with the constitutional requirements of Miller and were therefore

no longer a viable constitutional option for juvenile sentencing. Atwell, 197 So. 3d

at 1049. When considering the appropriate remedy for Miller violations, this Court

concluded that parole hearings were insufficient to comport with the requirements

of Miller:

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 Applying chapter 2014-220, Laws of Florida, as a remedy is
also faithful to Miller. This legislation was enacted in direct response
to the Supreme Court’s decisions in Miller and Graham, and it
appears to be consistent with the principles articulated in those
cases—that juveniles are different as a result of their “diminished
culpability and heightened capacity for change”; that individualized
consideration is required so that a juvenile’s sentence is proportionate
to the offense and the offender; and that most juveniles should be
provided “some meaningful opportunity” for future release from
incarceration if they can demonstrate maturity and rehabilitation.
See Miller, 132 S. Ct. at 2469.

Horsley v. State, 160 So. 3d 393, 406 (Fla. 2015). While the Legislature could

have changed the parole system to be compliant with Miller, it chose a different

route through its enactment of a comprehensive legislative scheme, tailored

specifically to juvenile offenders.

Stare Decisis

By casting Atwell aside in favor of its new decision, the plurality also casts

aside the principle of stare decisis. The principle of stare decisis “counsels [the

Court] to follow [its] precedents unless there has been ‘a significant change in

circumstances after the adoption of the legal rule, or . . . an error in legal

analysis.’ ” Valdes v. State, 3 So. 3d 1067, 1076 (Fla. 2009) (quoting Rotemi

Realty, Inc. v. Act Realty Co., 911 So. 2d 1181, 1188 (Fla. 2005)). Nowhere

mentioned in the plurality opinion is the test utilized by courts to determine when

disregarding precedent is appropriate.

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 As the United States Supreme Court has explained, the principle of stare

decisis “promotes the evenhanded, predictable, and consistent development of

legal principles, fosters reliance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808,

827 (1991). The plurality’s holding today does exactly the opposite. For this

reason, it cannot overcome the presumption in favor of stare decisis.

The presumption in favor of stare decisis can only be overcome upon

consideration of the following factors:

(1) Has the prior decision proved unworkable due to reliance on an
impractical legal “fiction”? (2) Can the rule of law announced in the
decision be reversed without serious injustice to those who have relied
on it and without serious disruption in the stability of the law? And
(3) have the factual premises underlying the decision changed so
drastically as to leave the decision’s central holding utterly without
legal justification?

Valdes, 3 So. 3d at 1077 (quoting Strand v. Escambia Cty., 922 So. 2d 150, 159

(Fla. 2008)).

As to the first factor, there is no indication that this Court’s decision in

Atwell has proved unworkable. Indeed, this Court and the district courts of appeal

have relied on Atwell when deciding juvenile sentencing cases, and extended the

holding in Atwell to other instances. See Lecroy v. State, 41 Fla. L. Weekly S621,

2016 WL 7212336 (Fla. Dec. 13, 2016); Woods v. State, 41 Fla. L. Weekly S621,

2016 WL 7217231 (Fla. Dec. 13, 2016); Rembert v. State, 41 Fla. L. Weekly S621,

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2016 WL 7217265 (Fla. Dec. 13, 2016); Wallace v. State, 41 Fla. L. Weekly S621,

2016 WL 7217278 (Fla. Dec. 13, 2016). As the Third District Court of Appeal

explained:

[W]e read Atwell to reject the notion that Florida’s current parole
scheme provides the individualized consideration of a defendant’s
juvenile status required under Miller. See Atwell, 197 So. 3d at 1042
(“The current parole process similarly fails to take into account the
offender’s juvenile status at the time of the offense, and effectively
forces juvenile offenders to serve disproportionate sentences of the
kind forbidden by Miller.”); see also id. at 1049 (“Parole is, simply
put, patently inconsistent with the legislative intent as to how to
comply with Graham and Miller.” (quotation omitted)). Since Atwell,
and applying its holding, we have reversed trial court orders denying
Miller postconviction claims even where, as in Reid’s case, the
presumptive parole release date was within the defendant’s lifetime.
See, e.g., Carter v. State, No. 3D16-1090, 2017 WL 1018513, at *1
(Fla. 3d DCA Mar. 15, 2017) (“Notwithstanding the fact that he will
be reevaluated for the possibility of parole in 2022, we conclude the
defendant is correct and that he is entitled to resentencing under
sections 775.082(3)(c) and 921.1401.”); Miller v. State, 208 So. 3d
834, 835 n.1 (Fla. 3d DCA 2017) (“The State’s contention that Miller
was parole-eligible as early as twelve years after the commission of
first-degree murder is irrelevant.”).
We do so here, too. We reverse the trial court’s order denying
Reid’s motion for post-conviction relief and remand for a
resentencing pursuant to section 921.1401.

Reid v. State, 42 Fla. L Weekly D1216, 2017 WL 2348615, at *3 (Fla. 3d DCA

May 31, 2017) (footnote omitted).

Additionally, in a different case, the Third District applied this Court’s

holding in Atwell to conclude that “all juveniles are entitled to judicial review and

resentencing in accordance with the new statutes.” Miller v. State, 208 So. 3d 834,

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834 (Fla. 3d DCA 2017). In reaching that conclusion, the Third District noted that

“the State’s contention that Miller was parole-eligible as early as twelve years after

the commission of first-degree murder is irrelevant.” Id. at n.1. Though the State

initially sought review of that decision in this Court, the State later voluntarily

dismissed that review proceeding. See State v. Miller, No. SC17-325, 2018 WL

857476 (Fla. Feb. 14, 2018). Accordingly, it appears that neither this Court nor the

district courts of appeal have found Atwell to be unworkable.

Turning to the second factor required to be considered when determining

whether the presumption against stare decisis has been overcome, any contention

that Atwell could be cast aside without serious injustice or creating instability in the

law is belied by this Court and district courts of appeals’ reliance on Atwell to grant

juvenile offenders relief. As previously explained, this relief comes in the form of

resentencing under chapter 2014-220, section 3, Laws of Florida, which allows

those juvenile offenders to argue for a sentence as low as forty years’

imprisonment with the opportunity of judicial review and consideration of the

other Miller factors. For example, the plurality’s decision is patently unfair to

Michel. Michel, who was sixteen years old at the time of his crimes, was

sentenced to a mandatory life sentence with the possibility of parole after twenty-

five years. See plurality op. at 2. This is the exact same sentence that we held was

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unconstitutional when imposed upon sixteen-year-old Angelo Atwell. Atwell, 197

So. 3d at 1041.

Additionally, because district courts have widely relied on this Court’s

opinion in Atwell for guidance, the plurality’s decision today creates a serious

disruption in the law. Without a full majority with respect to the plurality’s legal

analysis, it is unclear which portions of the plurality opinion, namely the plurality’s

decision to disregard Atwell, constitute controlling law. As a result, district courts

of appeal will be left guessing as to which juvenile defendants should be entitled to

relief.

Finally, turning to the third factor, even though the plurality fails to mention

the test for when binding precedent can be disregarded, it is clear that it relies

heavily on this factor as the basis for refusing to apply Atwell. The majority claims

that a new case from the United State Supreme Court, Virginia v. LeBlanc, 137 S.

Ct. 1726 (2017), has so changed the legal landscape as to warrant the extreme

injustice and instability that its decision today injects into our juvenile sentencing

jurisprudence. As explained in the next section, the plurality’s reliance on this

factor to support its decision is unconvincing.

Misplaced Reliance on LeBlanc

The United States Supreme Court has not addressed the discrete issue before

this Court—whether “relief under Atwell is dependent on the juvenile offender’s

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presumptive parole release date”—regardless of the plurality’s assertion to the

contrary. Michel v. State, 204 So. 3d 101, 101 (Fla. 4th DCA 2016). The plurality

asserts that the United States Supreme Court has, in fact, addressed this issue in

LeBlanc, and this Court is required to conform our jurisprudence accordingly. The

plurality claims that LeBlanc “clarified that the [Atwell] majority’s holding does

not properly apply United States Supreme Court precedent.” Plurality op. at 5.

Using this overreliance on LeBlanc as a basis to adopt Justice Polston’s dissent in

Atwell is unconvincing.

As this Court has explained, only “Supreme Court pronouncement[s] [that

are] factually and legally on point with the present case [will] automatically

modify the law of Florida.” Smallwood v. State, 113 So. 3d 724, 730 (Fla. 2013)

(last alteration in original) (quoting State v. Daniel, 665 So. 2d 1040, 1047 n.10

(Fla. 1995)). Indeed, when a case is “neither factually nor legally on point . . . the

conformity clause does not require Florida courts to apply [its] holding.” Id. A

careful reading of LeBlanc reveals that the opinion does not stand for the

proposition that any life sentence with parole will satisfy the Eighth Amendment.

The posture of LeBlanc was that the Virginia Supreme Court had analyzed

its own, very different, geriatric release program, and concluded that it satisfied the

Eighth Amendment. LeBlanc, 137 S. Ct. at 1727-28. The Fourth Circuit Court of

Appeals disagreed, concluding that “the state trial court’s ruling was an

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unreasonable application of Graham” and “Virginia’s geriatric release program did

not provide a meaningful opportunity for juvenile nonhomicide offenders to obtain

release.” Id. at 1728. The United States Supreme Court held only that it “was not

objectively unreasonable” for the Virginia Supreme Court to determine that

Virginia’s program did not violate the Eighth Amendment. Id. at 1729. The

plurality uses this exceedingly narrow holding as a direct statement regarding

United States Supreme Court precedent that Miller was never intended to apply to

prisoners who are sentenced to life with the possibility of parole in the State of

Florida. Plurality op. at 5-6.

However, there are two reasons why the plurality’s reliance on LeBlanc is

misplaced. First, the plurality fails to mention that the United States Supreme

Court was considering only whether the Fourth Circuit had improperly intruded on

the authority of the Virginia Supreme Court to conclude that its program satisfied

the Eighth Amendment. As the LeBlanc court explained:

In order for a state court’s decision to be an unreasonable
application of this Court’s case law, the ruling must be “objectively
unreasonable, not merely wrong; even clear error will not suffice.”
Woods v. Donald, 135 S. Ct. 1372, 1376 (per curiam ) (internal
quotation marks omitted). In other words, a litigant must “show that
the state court’s ruling . . . was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Ibid. (internal
quotation marks omitted). This is “meant to be” a difficult standard to
meet. Harrington v. Richter, 562 U.S. 86, 102 (2011).

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Id. at 1728. Accordingly, even if the United States Supreme Court believed that

the Virginia Supreme Court’s decision was in error, this still would not have been

enough to overturn the state court decision. Instead of looking at the LeBlanc

decision in its proper context through the rigorous standard of review, the plurality

uses the United States Supreme Court opinion to adopt the dissent written by

Justice Polston in Atwell. See Atwell, 197 So. 3d at 1050 (Polston, J., dissenting).

In fact, the United States Supreme Court’s holding in LeBlanc made no

mention of this Court’s opinion in Atwell, nor was it considering a state statute

similar to that at issue in this case. Despite the weight the plurality would give the

opinion, LeBlanc has no precedential value in this instance and does not implicate

this Court’s requirement to construe our Eighth Amendment jurisprudence in

conformance with the United States Supreme Court.

Second, a review of LeBlanc demonstrates that Virginia’s geriatric release

program is entirely different from Florida’s parole system. Indeed, the program

includes a consideration of many factors such as the “ ‘individual’s history . . . and

the individual’s conduct . . . during incarceration,’ as well as the individual’s

‘inter-personal relationships with staff and inmates.’ ” LeBlanc, 137 S. Ct. at 1729

(quoting LeBlanc v. Maithena, 841 F.3d 256, 280-81 (4th Cir. 2016) (Niemeyer, J.,

dissenting)). Consideration of these factors could lead to the individual’s

conditional release in light of his or her “demonstrated maturity and

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rehabilitation.” Id. (quoting Graham, 560 U.S. at 75). Florida’s parole system, as

we explained in Atwell, does not—with its primary concern being on the perceived

dangerousness of the criminal defendant. Indeed, the Florida Commission on

Offender Review’s mission statement is “Ensuring public safety and providing

victim assistance through the post prison release process.” Fla. Comm’n on

Offender Review 2016 Annual Report (2016),

https://www.fcor.state.fl.us/docs/reports/FCORannualreport201516.pdf.

The other cases cited by the plurality in support of its position—Friedlander

v. United States, 542 F. App’x 576 (9th Cir. 2013); Lewis v. State, 428 S.W.3d 860

(Tex. Crim. App. 2014); and James v. United States, 59 A.3d 1233 (D.C. 2013)—

are likewise unhelpful for three reasons. See plurality op. at 8-9. First, and

importantly, all of the opinions cited by the majority were decided before the

United States Supreme Court issued its opinion in Montgomery v. Louisiana, 136

S. Ct. 718 (2016), mandating that Miller requires “[a] hearing where ‘youth and its

attendant characteristics’ are considered as sentencing factors . . . to separate those

juveniles who may be sentenced to life without parole from those who may not.”

Id. at 735. Such a hearing gives “effect to Miller’s substantive holding that life

without parole is an excessive sentence for children whose crimes reflect transient

immaturity.” Id. As the Supreme Court clarified in Montgomery, and contrary to

the decisions cited by the plurality today, Miller

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 did more than require a sentencer to consider a juvenile offender’s
youth before imposing life without parole; it established that the
penological justifications for life without parole collapse in light of
“the distinctive attributes of youth.” [Miller], 132 S. Ct. at 2465.
Even if a court considers a child’s age before sentencing him or her to
a lifetime in prison, that sentence still violates the Eighth Amendment
for a child whose crime reflects “ ‘unfortunate yet transient
immaturity.’ ” 132 S. Ct. at 2469 (quoting Roper, 543 U.S., at 573).
Because Miller determined that sentencing a child to life without
parole is excessive for all but “ ‘the rare juvenile offender whose
crime reflects irreparable corruption,’ ” 132 S. Ct. at 2469
(quoting Roper, supra, at 573), it rendered life without parole an
unconstitutional penalty for “a class of defendants because of their
status”—that is, juvenile offenders whose crimes reflect the transient
immaturity of youth. Penry, 492 U.S. at 330. As a result, Miller
announced a substantive rule of constitutional law. Like other
substantive rules, Miller is retroactive because it “ ‘necessarily
carr[ies] a significant risk that a defendant’ ”—here, the vast majority
of juvenile offenders—“ ‘faces a punishment that the law cannot
impose upon him.’ ” Schriro, 542 U.S. at 352 (quoting Bousley v.
United States, 523 U.S. 614, 620 (1998)).

Montgomery, 136 S. Ct. at 734.

Second, each decision adopts an unnecessarily narrow interpretation of

Miller, which this Court chose not to incorporate into this State’s jurisprudence.

Indeed, we explained this in Atwell, stating that this Court’s broader interpretation

of Miller in that case was

consistent with this Court’s precedent involving juvenile sentencing
cases that has followed the spirit of the United States Supreme Court’s
recent juvenile sentencing jurisprudence, rather than an overly narrow
interpretation. For example, this Court in Henry v. State, 175 So. 3d
675 (Fla. 2015), recently rejected a similarly narrow reading as the
one the State offers of Miller here, in concluding that the underlying
premise of the Supreme Court’s related decision in Graham v.
Florida, 560 U.S. 48 (2010), controlled over a reading that would

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 have confined the scope of Graham to only sentences denominated as
“life” imprisonment.

Atwell, 197 So. 3d at 1041-42.

Finally, the three cases cited by the plurality are also unpersuasive because

each is based on a distinct statutory scheme—the United States Code, the Texas

Penal Code, and Washington D.C. criminal law, respectively. As explained in

James, “under the D.C. code, the D.C. Council and Executive Branch have already

considered youth and its attendant factors, by limiting the minimum sentence to

thirty years for [juvenile offenders] . . . [and] [i]n this jurisdiction, sentencing is a

joint exercise by the legislative, executive, and judicial branches.” James, 59 A.3d

at 1238. Following Miller, the Florida Legislature created a new and separate

system of judicial review, specific to juveniles. See § 921.1402, Fla. Stat. (2017).

Again, as this Court explained in Atwell, “[i]n Horsley, this Court held that the

appropriate remedy for any juvenile offender whose sentence is unconstitutional

under Miller is to apply chapter 2014-220, Laws of Florida—legislation enacted by

the Florida Legislature in 2014 to bring Florida’s sentencing laws into compliance

with the Graham and Miller decisions.” 197 So. 3d at 1045 (citing Horsley, 160

So. 3d at 409).

Florida’s Current Parole System Does Not Comport with Miller

Turning to the discrete issue before this Court, I would conclude that

resentencing juvenile offenders pursuant to chapter 2014-220, section 2, regardless

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of whether they currently have a presumptive parole release date, is the

constitutionally required solution because Florida’s current parole system affords

juveniles no meaningful opportunity to demonstrate entitlement to release. In

Atwell, this Court concluded that “Florida’s existing parole system, as set forth by

statute, does not provide for individualized consideration of Atwell’s juvenile

status at the time of the murder.” 197 So. 3d at 1041. We further explained that

Florida’s “current parole process . . . fails to take into account the offender’s

juvenile status at the time of the offense and effectively forces juvenile offenders to

serve disproportionate sentences.” Id. at 1042.

This Court could not have been clearer in its conclusion that “[p]arole is,

simply put, ‘patently inconsistent with the legislative intent’ as to how to comply

with Graham and Miller.” Id. at 1049 (quoting Horsley, 160 So. 3d at 395). As

the Atwell Court noted, while the Legislature could have chosen “a parole-based

approach” to comply with Miller and Graham, it chose instead to fashion a

different remedy of resentencing under a new law, which explicitly considers the

Miller factors. Id.

Specifically, Florida’s current parole system does not provide juvenile

offenders an opportunity to demonstrate that release is appropriate based on

maturity and rehabilitation for several reasons. First, the Commission relies on

static, unchanging factors, such as the crimes committed and previous offenses,

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when determining whether or not to grant an offender parole. See Fla. Admin.

Code. R. 23-21.007. Under Graham, however, a juvenile’s “meaningful

opportunity to obtain release [must be] based on demonstrated maturity and

rehabilitation.” Graham, 560 U.S. at 75. Relying on static factors such as the

offense committed ignores the focus on the “demonstrated maturity and

rehabilitation” that Graham and Miller require. Id.

Second, an inmate seeking parole has no right to be present at the

Commission meeting and has no right to an attorney. Although the hearing

examiner sees the inmate prior to the hearing, the commissioners do not. Fla.

Admin. Code R. 23-21.004(13); 23-21.001(6). Third, there is only a limited

opportunity for supporters of the inmate to speak on the inmate’s behalf. Fla.

Comm’n on Offender Review, Release and Supervision Frequently Asked

Questions, https://www.fcor.state.fl.us/mediaFactSheet.shtml (last visited April 10,

2018) (“All speakers, in support, must share the allotted 10 minute time frame for

speaking. All speakers, in opposition, must share the allotted 10 minute time

frame for speaking.”). Finally, there is no right to appeal the Commission’s

decision, absent filing a writ of mandamus. Armour v. Fla. Parole Comm’n, 963

So. 2d 305, 307 (Fla. 1st DCA 2007).

By contrast, the new sentencing law affords juvenile offenders the

opportunity to argue for a sentence of forty years with judicial review of their

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sentences at twenty-five years. See § 775.082(1)(b)1., Fla. Stat. (2017). This

judicial review includes a hearing, where the juvenile is “entitled to be represented

by counsel.” § 921.1402(5), Fla. Stat. (2017). Additionally, a trial court will

determine whether the juvenile is entitled to resentencing or early release. Id.

§ 921.1402(6). In making that determination, the trial court is required to consider

all of the following individualized factors:

(a) Whether the juvenile offender demonstrates maturity and
rehabilitation.
(b) Whether the juvenile offender remains at the same level of
risk to society as he or she did at the time of the initial sentencing.
(c) The opinion of the victim or the victim’s next of kin. The
absence of the victim or the victim’s next of kin from the sentence
review hearing may not be a factor in the determination of the court
under this section. The court shall permit the victim or victim’s next
of kin to be heard, in person, in writing, or by electronic means. If the
victim or the victim’s next of kin chooses not to participate in the
hearing, the court may consider previous statements made by the
victim or the victim’s next of kin during the trial, initial sentencing
phase, or subsequent sentencing review hearings.
(d) Whether the juvenile offender was a relatively minor
participant in the criminal offense or acted under extreme duress or
the domination of another person.
(e) Whether the juvenile offender has shown sincere and
sustained remorse for the criminal offense.
(f) Whether the juvenile offender’s age, maturity, and
psychological development at the time of the offense affected his or
her behavior.
(g) Whether the juvenile offender has successfully obtained a
high school equivalency diploma or completed another educational,
technical, work, vocational, or self-rehabilitation program, if such a
program is available.
(h) Whether the juvenile offender was a victim of sexual,
physical, or emotional abuse before he or she committed the offense.

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 (i) The results of any mental health assessment, risk
assessment, or evaluation of the juvenile offender as to rehabilitation.

Id. § 921.1402(6). This process could not be more different from the current

parole process.

Necessarily included in this Court’s rejection of the parole system in Atwell

was a rejection of the method used by Florida’s parole system to determine a

defendant’s presumptive parole release date, which virtually guarantees that any

sentence with the possibility of parole imposed for first-degree murder will be the

practical equivalent of a life sentence. Indeed, when describing how presumptive

parole release dates are determined in Atwell, this Court explained:

In most respects, a sentence of life with the possibility of parole
for first-degree murder, based on the way Florida’s parole process
operates under the existing statutory scheme, actually resembles a
mandatorily imposed life sentence without parole that is not
“proportionate to the offense and the offender.” Horsley, 160 So. 3d
at 406. Based on Florida’s objective parole guidelines, an individual
who was convicted of a capital offense under section 775.082, Florida
Statutes (1990), as Atwell was, will have a presumptive parole release
date of anywhere from 300 to 9,998 months in the future. Fla. Admin.
Code R. 23-21.009 (2014). Importantly, the statute requires “primary
weight” in the consideration of parole to be given “to the seriousness
of the offender’s present offense”—here, the most serious offense of
first-degree murder—“and the offender’s past criminal record.”
§ 947.002, Fla. Stat.
If an offender convicted of first-degree murder has a high
salient score, that offender’s range of months for the presumptive
parole release date could span from hundreds of months to nearly ten
thousand months. Fla. Admin. Code R. 23-21.009 (2014). This range
of months, which encompasses hundreds of years, could be lawfully
imposed without the Commission on Offender Review even
considering mitigating circumstances. The Commission is only

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 required to consider mitigating and aggravating circumstances if it
wishes to impose a presumptive parole release date that falls outside
the given range of months. Fla. Admin. Code R. 23-21.010 (2010).
Further, the enumerated mitigating and aggravating circumstances in
rule 23-21.010 of the Florida Administrative Code, even if utilized, do
not have specific factors tailored to juveniles. In other words, they
completely fail to account for Miller.
Using Florida’s objective parole guidelines, then, a sentence for
first-degree murder under the pre-1994 statute is virtually guaranteed
to be just as lengthy as, or the “practical equivalent” of, a life sentence
without the possibility of parole. Indeed, that is the case here, with
Atwell’s presumptive parole release date having recently been set to
140 years in the future.

Id. at 1048.

This Court has held that a parolee may not rely on a presumptive parole

release date, and there is no constitutional liberty interest attached to a parole date.

Meola v. Dep’t of Corr., 732 So. 2d 1029, 1034 (Fla. 1998). As amici curiae, the

Public Interest Law Center and Florida Juvenile Resentencing and Review Project

explain:

The PPRD [presumptive parole release date] date “becomes binding
upon the Commission in the sense that, once established, it is not to be
changed except for reasons of institutional conduct, acquisition of new
information not available at the time of the initial interview, or for
good cause in exceptional circumstances.” Florida Parole & Prob.
Comm’n v. Paige, 462 So. 2d at 819; §§ 947.172(1), Fla. Stat. (2016).
However, the PPRD does not mean the inmate will be paroled
on that date. “Prior to the arrival of this date, inmates are given a final
interview and review in order to establish an effective release date
after which the Commission must determine ‘whether or not to
authorize the effective parole release date.’ ” Id. Thus, under
Florida’s parole system, the PPRD is merely a step towards the
possibility of establishing an effective parole release date (EPRD).

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 A PPRD is neither a reliable metric, nor is it a legal standard; it
is not a legal sentence under Florida’s Criminal Punishment Code. A
PPRD is merely one segment of the Commission’s parole process; by
definition, the PPRD is only “a tentative parole release date as
determined by objective parole guidelines.” § 947.005(8), Fla. Stat.

Am. Br. of Pub. Int. L. Ctr. & Fla. Juv. Resent’g & Rev. Project at 8-9.

Accordingly, it would be improper to base constitutional relief on such a fluid

calculation.

Indeed, the conflict cases demonstrate this point clearly. As the Fifth

District explained in Stallings v. State, 198 So. 3d 1081 (Fla. 5th DCA 2016):

In 1999, following a review, the Commission established
Appellant’s presumptive parole release date as December 11, 1999;
however, that release date was suspended as a result of an
“Extraordinary Review,” which discussed a number of infractions
accrued by Appellant during his incarceration. The Commission
indicated that another review would be conducted in July 2004. We
cannot determine from the record whether the Commission conducted
a review in July 2004 and a new presumptive release date was ever
calculated, or whether Appellant remains in limbo under the
suspended 1999 release date.

Id. at 1082. Despite having a presumptive parole release date of 1999, Stallings

was still incarcerated in 2016, almost two decades after his initial presumptive

parole release date.

Additionally, with respect to the other conflict case, Williams v. State, 198

So. 3d 1084 (Fla. 5th DCA 2016), even the Fifth District acknowledged:

What is certain is that, like Atwell, the statutory scheme Williams was
sentenced under provided only for the death penalty or life with the
possibility of parole after twenty-five years. § 775.082(1), Fla. Stat.

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 (1988). The trial court was not able to consider factors that would
have allowed it to individually tailor Williams’ sentence based on his
juvenile status. See Miller, 132 S. Ct at 2469. As a result, if
Williams’ PPRD is calculated similarly to Atwell’s, he will likely
have no hope for release prior to his death, a consequence the United
States Supreme Court has determined is unconstitutional. See id.
(citing Graham v. Florida, 560 U.S. 48, 74-75 (2010)).

Id. at 1086. Both conflict cases recognize that it is highly unlikely that either

juvenile offender would be released from prison during his lifetime. However,

under the plurality’s reasoning today, even Stallings and Williams, whom the

district courts acknowledge could potentially be entitled to resentencing pending

the determination of a presumptive parole release date, would now not be entitled

to resentencing, regardless of any presumptive parole release date.

CONCLUSION

For all of the reasons explained above and because our precedent compels

such a result, I would conclude that a presumptive parole release date should not be

considered when determining whether the constitution entitles a juvenile to

resentencing. Specifically, I would not reject Atwell and would instead hold that

Atwell, which faithfully interpreted the United States Supreme Court’s decisions,

requires that all juvenile offenders sentenced to life with the possibility of parole

after twenty-five years be resentenced pursuant to section 921.1401 regardless of a

presumptive parole release date, if one has been set. This result would not

guarantee Michel any particular term of years sentence less than life but would

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require the sentencing court to consider all of the Miller factors when resentencing

Michel and would allow the sentencing court the discretion to impose a forty-year

sentence with an entitlement to judicial review, and all of those benefits previously

explained, after twenty-five years from his initial sentencing.

Accordingly, I dissent.

QUINCE and LABARGA, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

Fourth District - Case No. 4D13-1123

(Broward County)

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau
Chief, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm
Beach, Florida,

for Petitioner

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,

for Respondent

Paolo Annino, Florida State University College of Law, Tallahassee, Florida, and
Roseanne Eckert, Florida International University College of Law, Miami, Florida,

Amici Curiae Public Interest Law Center at the FSU College of Law and the
Florida Juvenile Resentencing and Review Project at the FIU College of
Law

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